San Bernardino County opts for dispensary closures via courts

The much-heralded May 6 decision by the California Supreme Court affirming local governments' right to ban medical marijuana dispensaries within their borders has not been the magic bullet some had expected it to be.

Voters approved medical marijuana via ballot initiative 17 years ago, but officials resisted setting up a statewide system of addressing the dispensary issue, leading to a wildly varying patchwork across the state. In Los Angeles County and other regions, dispensaries openly flourished and multiplied, while in others, dispensaries operated on the margins. In recent years, cities and towns across California sought to ban them within municipal limits, but a conflicting series of lower-court decisions made the bans difficult to enforce.

That all ended with a state Supreme Court decision upholding local governments' right to do so -- in theory.

"We didn't wait for May 6," San Bernardino County spokesman David Wert said. "We saw the May 6 decision as an affirmation of what we've always been doing."

The county -- which refuses to grant business licenses to medical marijuana dispensaries "" treats the dispensaries like any other business operating without a license, he said.

"The county's approach has been to cite them, take them to court for being an illegal business."

And after those citations pile up -- at least 14, but sometimes more than 100 -- the county gets the Sheriff's Department to step in, just as they would for any other business operating without a license.

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(San Bernardino County only requires licenses for certain types of businesses, including hotels, massage facilities, bingo parlors and the like. Most other businesses, including liquor stores, nail salons or auto shops, may be subject to other forms of regulation, but don't require a license from the county.)

"The option of kicking down the doors and seizing product was definitely available, but we deliberately went with the civil approach, because we think it's more effective at closing dispensaries," Wert said. "The approach we took would put zero additional burden on the criminal justice system but would be just as, or more, effective."

The approach has kept a lid on the number of marijuana dispensaries in the unincorporated areas of the county, according to Wert.

"The reports show that three or four of these dispensaries close every month, but then two or three open every month, before the supreme court decision," he said. "We do know that we've had four dispensaries close since the supreme court decision. And they said the supreme court decision factored in."

In the past two years 40 dispensaries have closed, including Lima Collective in Running Springs -- sort of. They've already reopened as a delivery service, which won't attract San Bernardino County's ire.

Wert said the ordinance prohibits mobile business, but "the problem is catching them."

But the county has gotten as tough as it possibly can on the dispensaries, he said.

"If you ban a business from existence, I'm not sure how much more extreme you can be."

But it's not solely up to local governments: The federal Drug Enforcement Agency has raided San Bernardino County dispensaries as recently as February. The federal government may be legally compelled to essentially overrule 1996's Proposition 215, which legalized the medical use of marijuana in the state, according to Art Svenson, a professor of government at the University of Redlands.

"The Supreme Court of the United States has ruled that the Controlled Substances Act that prohibits marijuana use for any purpose is a legitimate exercise of Congress' Commerce Clause power; any conflict, then, between the CSA and state law would require as a consequence of the Supremacy Clause of the Constitution that state law would be null and void," Svenson said. "So, what will the Obama Administration decide to do: enforce national law gutting state law contrary to it, or, not enforce national law to sustain the considered judgments of a growing number of state governments--an option which itself is probably unconstitutional since the president is required to take care that national law is faithfully executed."

Svenson said the medical marijuana issue is "one of the most fascinating in all of contemporary constitutional law."